Ybarra v. Colvin

Filing 15

ORDER that the Commissioner's final decision is affirmed. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 3/21/2014. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Selia Ybarra,

No. CV-13-01517-PHX-DGC
Plaintiff,

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v.

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ORDER

Carolyn W Colvin,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Selia Ybarra seeks judicial review of the

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Commissioner’s decision finding her not disabled within the meaning of the Social

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Security Act.

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Commissioner’s decision.

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I.

Doc. 12.

For the reasons that follow, the Court will affirm the

Background.

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Plaintiff applied for disability and supplemental security insurance benefits on

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October 6, 2009, alleging disability beginning September 1, 2009. Doc. 12 at 1. After a

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hearing on August 19, 2011, an administrative law judge (“ALJ”) issued an opinion on

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October 5, 2011 finding Plaintiff not disabled. Id. at 2; A.R. 13-24. A request for review

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was denied by the Appeals Council and the ALJ’s opinion became the Commissioner’s

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final decision. Doc. 12 at 2.

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II.

Legal Standard.

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Defendant’s decision to deny benefits will be vacated “only if it is not supported

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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but

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less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.”

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supported by substantial evidence, the Court must consider the record as a whole,

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weighing both the evidence that supports the decision and the evidence that detracts from

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it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to

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support the Commissioner’s determination, the Court cannot substitute its own

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determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

Id.

In determining whether the decision is

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Determining whether a claimant is disabled involves a sequential five-step

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evaluation. The claimant must show (1) he is not currently engaged in substantial gainful

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employment, (2) he has a severe physical or mental impairment, and (3) the impairment

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meets or equals a listed impairment or (4) his residual functional capacity (“RFC”)

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precludes him from performing his past work.

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determines that a claimant is or is not disabled, the analysis ends; otherwise it proceeds to

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step five. If the claimant establishes his burden through step four, the Commissioner

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bears the burden at step five of showing that the claimant has the RFC to perform other

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work that exists in substantial numbers in the national economy.

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§ 404.1520(a)(4)(i)-(v).

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III.

If at any step the Commissioner

See 20 C.F.R.

Analysis.

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Plaintiff advances three arguments as to why the ALJ’s decision was erroneous.

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First, she argues that the ALJ failed to properly characterize Plaintiff’s cervical

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degenerative disc disease and missed the Plaintiff’s lumbar degenerative disc disease,

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rotator cuff degeneration, carpal tunnel syndrome, and short term memory loss. Doc. 12

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at 11.

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vocational expert. Id. at 13. Third, Plaintiff argues that the ALJ mischaracterized her

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testimony. Id. at 15. The Court will consider each argument in turn.

Second, Plaintiff contends that the ALJ failed to obtain testimony from a

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A.

Residual Functional Capacity Assessment.

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Plaintiff argues that the ALJ’s residual functional capacity (“RFC”) assessment

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was incomplete because the ALJ failed to properly characterize some of her alleged

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impairments. Doc. 12 at 11. Plaintiff points to specific evidence that she contends is

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contrary to the ALJ’s RFC assessment. For example, she cites a consultative exam by

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Dr. Chaffee, which she alleges “showed evidence of carpal tunnel syndrome with a

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positive Tinel’s sign and a diminished pinprick sensation over her right thumb and

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second and third fingers.” Id. (citing A.R. 346). In the cited document, however, Dr.

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Chaffee clearly noted that he did not believe that Plaintiff had any conditions that would

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impose any limitations for 12 continuous months. A.R. 346.

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Plaintiff argues that she suffers from significant degenerative disc disease which

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the ALJ erroneously characterized as “occasional neck stiffness.” Doc. 12 at 11. As

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support, she cites MRI results from October 2002 (A.R. 227), which is well outside the

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relevant time period at issue (September 1, 2009 through August 19, 2011). She also

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cites a 2011 x-ray report which showed “mild degenerative disc disease” and “moderate

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diffuse osteoarthritis.” Doc. 12 at 12. This report, however, was considered and cited by

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the ALJ in his opinion. A.R. 20. The ALJ noted that “the objective medical evidence

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reveals only mild degenerative disc disease” (id.), that there was “no evidence in the

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record of bulging discs” (id.), that Plaintiff reported only “occasional neck stiffness” at an

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exam in September 2010 (id.), and that “the record reflects no actual treatment for the

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alleged back and neck pain aside from her report to the consultative examiner that she

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takes Tylenol for pain . . . and her primary care provider’s instruction to lose weight”

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(id.). Plaintiff cites no evidence in the record that is inconsistent with this determination.

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That Plaintiff disagrees with the ALJ’s assessment, without more, does not constitute

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legal error.

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Plaintiff cites a March 2009 x-ray showing that “she had rotator cuff

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degeneration” (A.R. 293) and an October 2010 evaluation wherein she was diagnosed

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with “bilateral mild acromioclavicular joint degenerative joint disease” (id. at 454). She

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states that the ALJ “made no reference to [her] rotator cuff in his decision.” Doc. 12 at

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12. Plaintiff ignores, however, that the March 2009 x-ray results refer to the rotator cuff

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irregularity as “mild” and state that Plaintiff’s shoulder is “stable since the previous study

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of 2008[.]”

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inconsistent with the ALJ’s RFC assessment. The Court therefore cannot conclude that

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the ALJ committed legal error by not explicitly discussing these reports in his opinion.

A.R. 293.

Plaintiff also does not explain why these documents are

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Plaintiff argues that the ALJ erred by failing to mention the opinions of two

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examining doctors, Drs. Bradley and Steingard. Doc. 12 at 13. She cites Hill v. Astrue,

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698 F.3d 1153, 1160 (9th Cir. 2012), for the proposition that an ALJ must provide clear

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and convincing reasons to reject an examining physician’s opinion.

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Plaintiff cites a valid standard, nothing in the record indicates that the ALJ rejected the

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opinions of Drs. Steingard and Bradley. Moreover, their opinions appear to be consistent

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with the ALJ’s conclusions. Dr. Bradley opined that Plaintiff was “limited to simple

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tasks” and limited to work without any public contact and with minimal interaction with

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peers. A.R. 366. He further opined that there were no limitations for work in a low stress

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environment with minimal interaction with peers. Id. Dr. Steingard found that Plaintiff

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would need to have some instructions repeated at work, that she was able to maintain

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concentration over the course of the interview, that she would be sensitive to criticism at

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work, that her interaction was impaired but not precluded, and that she can perform

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simple and repetitive tasks but that she was unlikely to be successful with more complex

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tasks. Id. at 341. These opinions are consistent with the ALJ’s finding that Plaintiff is

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capable of light, unskilled work. Id. at 23.

Id.

Although

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An RFC assessment “must include a narrative discussion describing how the

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evidence supports each conclusion, citing specific medical facts (e.g., laboratory

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findings) and nonmedical evidence (e.g., daily activities, observations). SSR 96-8P. In

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cases where symptoms such as pain are alleged, the assessment must “[c]ontain a

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thorough discussion and analysis of the objective medical and other evidence” and

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“include a resolution of any inconsistencies in the evidence as a whole[.]” Id.

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The Court finds that the ALJ has fulfilled these requirements. In supporting his

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determination, he noted that the record “shows no treatment records after the alleged

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disability onset date until February 4, 2010 when the claimant was seen in CIGNA

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Urgent Care for acute bronchitis, which is unrelated to the alleged disability impairments

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and itself not causing limitations for 12 continuous months[.]” A.R. at 19. He further

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notes that Plaintiff’s primary care provider “noted that [Plaintiff]’s depression was well-

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controlled” in December 2010 (id.); that Plaintiff reported feeling the same in April 2011

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(id. at 20); that the first complaint of back pain is on April 21, 2011, and that Plaintiff’s

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primary care provider concluded on August 25, 2011 that she had “stable lumbar and

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cervical degenerative disc disease [][and] she was to continue to work on weight loss”

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(id.); that her fibromyalgia diagnosis was not supported by the physical examination and

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was not diagnosed by a rheumatologist (id.); that there was “no evidence in the record of

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bulging discs” (id.), that Plaintiff reported only “occasional neck stiffness” at an exam in

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September 2010 (id.), that “the record reflects no actual treatment for the alleged back

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and neck pain aside from her report to the consultative examiner that she takes Tylenol

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for pain . . . and her primary care provider’s instruction to lose weight” (id.); that Plaintiff

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gave inconsistent reasons as to why she stopped working (id. at 20-21); and that Plaintiff

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“described daily activities which are not limited to the extent one would expect given the

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complaints of disabling symptoms and limitations” (id. at 21). As noted above, Plaintiff

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has not identified any evidence inconsistent with this assessment. The Court accordingly

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does not find legal error associated with the RFC assessment and concludes that it is

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supported by “such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.” See Robbins, 466 F.3d at 882.

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B.

Vocational Expert.

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Plaintiff argues that this “case needed a vocational expert to clarify the issue” of

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her limitations. Doc. 12 at 15. Plaintiff, however, cites no authority to support her

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assertion that the ALJ should have consulted a vocational expert.

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An ALJ need not always utilize a vocational expert. “The Commissioner’s need

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for efficiency justifies use of the [Medical-Vocational Guidelines] at step five where they

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completely and accurately represent a claimant’s limitation.” Tackett v. Apfel, 180 F.3d

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1094, 1101 (9th Cir. 1999) (emphasis in original). “The Guidelines present, in table

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form, a short-hand method for determining the availability and numbers of suitable jobs

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for a claimant.” Id. The Tackett court noted that “significant non-exertional impairments

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. . . may make reliance on the [Guidelines] inappropriate,” and that “[w]e have also held

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that pain can be a non-exertional limitation.” Id. at 1101-02 (citing Derosiers v. Sec’y of

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Health & Human Servs., 846 F.2d 573, 577 (9th Cir. 1988)).

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Here, the ALJ found that Plaintiff’s “additional limitations have little or no effect

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on the occupational base of light unskilled work.” A.R. 23. Plaintiff relies solely on the

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opinion of Dr. Bradley to dispute this finding. Doc. 12 at 15, Doc. 14 at 7. As noted

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above, however, Dr. Bradley found that Plaintiff was “limited to simple tasks,” limited to

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work without any public contact and with minimal interaction with peers, and had no

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limitations for work in a low stress environment with minimal interaction with peers.

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A.R. 366.

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remunerative, unskilled work include the abilities (on a sustained basis) to understand,

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carry out and remember simple instructions; to respond appropriately to supervision, co-

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workers, and usual work settings; and to deal with changes in a routine work setting.” Id.

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at 23 (citing SSR 85-15). He further noted that “[a] substantial loss of ability to meet any

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of these basic work-related activities would severely limit the potential occupational

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base.” Id. (citing SSR 85-15). Neither Dr. Bradley nor any other physician concluded

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that Plaintiff did not have the ability to meet these basic work related activities. The

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Court cannot conclude that the ALJ committed legal error by relying on the Guidelines

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and declining to consult a vocational expert.

The ALJ discussed that “the basic mental demands of competitive,

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C.

Plaintiff’s Testimony.

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In evaluating the credibility of a claimant’s testimony regarding subjective pain or

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other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine

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whether the claimant presented objective medical evidence of an impairment that could

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reasonably be expected to produce some degree of the pain or other symptoms alleged

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with no evidence of malingering, and (2) reject the claimant’s testimony about the

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severity of the symptoms only by giving specific, clear, and convincing reasons for the

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rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

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At the first step, the ALJ found that Plaintiff’s medically determinable

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impairments could reasonably be expected to cause the alleged symptoms. A.R. 18. At

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the second, the ALJ found Plaintiff’s statements regarding the intensity, persistence, and

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limiting effects of her symptoms not credible to the extent they were inconsistent with his

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RFC assessment. Id. at 18-19. The Court finds that the ALJ gave specific, clear, and

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convincing reasons for finding Plaintiff’s testimony not credible. He noted that the

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record “shows no treatment records after the alleged disability onset date until

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February 4, 2010 when the claimant was seen in CIGNA Urgent Care for acute

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bronchitis, which is unrelated to the alleged disability impairments and itself not causing

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limitations for 12 continuous months[.]” Id. at 19. The ALJ further noted (1) that

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Plaintiff’s primary care provider said on December 17, 2010 that her “depression was

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well-controlled”; (2) that “her therapist noted ‘marked improvement. Nearly complete

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remission of most symptoms” in March 2011; (3) that Plaintiff reported to her primary

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care provider on April 21, 2011 that her depression was well-controlled; (4) that

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Plaintiff’s diagnosis of fibromyalgia was not supported by her physical exam and not

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diagnosed by a rheumatologist; (5) that there was “simply no evidence in the record of

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bulging discs”; (6) that there was evidence in the record that the Plaintiff “stopped

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working for reasons not related to the allegedly disabling impairments”; (7) that Plaintiff

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went on vacation in March 2011; and (8) that Plaintiff “described daily activities which

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are not limited to the extent one would expect given the complaints of disabling

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symptoms and limitations.” Id. at 19-21. The ALJ’s reasons for rejecting Plaintiff’s

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subjective testimony are sufficient to meet the standard required by the Ninth Circuit.

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See Vasquez, 572 F.3d at 591.

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IT IS ORDERED that the Commissioner’s final decision is affirmed. The Clerk
shall enter judgment accordingly and terminate this case.
Dated this 21st day of March, 2014.

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